Yes, a charge must be dismissed if it fails to properly allege a violation of a punitive article under the UCMJ. This is a fundamental principle of military law and due process. A charge sheet (DD Form 458) has two parts for each charge: the specification, which details the specific facts of the alleged misconduct, and the charge itself, which states the specific UCMJ article that was violated.
For a charge to be legally sufficient, the facts alleged in the specification must constitute a crime under the UCMJ article cited in the charge. If the specification, even if all the facts within it are assumed to be true, does not actually describe a violation of a punitive article, then it “fails to state an offense.” For example, if a commander charges a soldier under Article 92 for violating a “unit policy” that was never actually published, the charge is legally deficient.
A military defense attorney will carefully scrutinize every charge to ensure its legal sufficiency. If they identify a charge that fails to state an offense, they will file a formal motion with the military judge to have that charge dismissed. The motion will argue that the charge is legally baseless. If the judge agrees that the facts alleged do not constitute a UCMJ offense, they are required to grant the motion and dismiss that specific charge from the case.